same time judge and master, so the high priest of the city was at the same time its political chief. The altar- to borrow an expression of Aristotle conferred dignity and power upon him. There is nothing to surprise us in this confusion of the priesthood and the civil power. We find it at the beginning of almost all societies, either because during the infancy of a people nothing but religion will command their obedience, or because our nature feels the need of not submitting to any other power than that of a moral idea.

We have seen how the religion of the city was mixed up with everything. Man felt himself at every moment dependent upon his gods, and consequently upon this priest, who was placed between them and himself. This priest watched over the sacred fire; it was, as Pindar says, his daily worship that saved the city every day. He it was who knew the formulas and prayers which the gods could not resist; at the moment of combat, he it was who slew the victim, and drew upon the army the protection of the gods. It was very natural that a man armed with such a power should be accepted and recognized as a leader. From the fact that religion had so great a part in the government, in the courts, and in war, it necessarily followed that the priest was at the same time magistrate, judge, and military chief. "The kings of Sparta," says Aristotle, "have three attributes: they perform the sacrifices, they command in war, and they administer justice." Dionysius of Halicarnassus expresses himself in the same manner regarding the kings of Rome.

The constitutional rules of this monarchy were very simple; it was not necessary to seek long for them; they flowed from the rules of the worship themselves. The founder, who had established the sacred fire, was naturally the first priest. Hereditary succession was the constant rule, in the beginning, for the transmission of this worship. Whether the sacred fire was that of a family or that of a city, religion prescribed that the care of supporting it should always pass from father to son. The priesthood was therefore hereditary, and the power went with it.3

A well-known fact in the history of Greece proves, in a striking manner that, in the beginning, the kingly office belonged to the man who set up the hearth of the city. We know that the population of the Ionian colonies was not composed of Athenians, but that it 1 Pindar, "Nem.," XI. 5. Politics," III. 9.

2 Aristotle,

We speak here only of the early ages of cities. We shall see, farther on, that a time came when hereditary succession ceased to be the rule, and we shall explain why at Rome royalty was not hereditary.

was a mixture of Pelasgians, Æolians, Abantes, and Cadmeans. Yet all the hearths of the cities were placed by the members of the religious family of Codrus.

It followed that these colonists, instead of having for leaders men of their own race, the Pelasgi a Pelasgian, the Abantes an Abantian, the Eolians an Æolian, - all gave the royalty in their twelve cities to the Codridæ.' Assuredly these persons had not acquired their authority by force, for they were almost the only Athenians in this numerous agglomeration. But as they had established the sacred fires, it was their office to maintain them. The royalty was, therefore, bestowed upon them without a contest, and remained hereditary in their families. Battus had founded Cyrene in Africa; and the Battiada were a long time in possession of the royal dignity there. Protis founded Marseilles; and the Protiadæ, from father to son, performed the priestly office there, and enjoyed great privileges.

It was not force, then, that created chiefs and kings in those ancient cities. It would not be correct to say that the first man who was king there was a lucky soldier. Authority flowed from the worship of the sacred fire. Religion created the king in the city, as it had made the family chief in the house. A belief, an unquestionable and imperious belief, declared that the hereditary priest of the hearth was the depositary of the holy duties and the guardian of the gods. How could one hesitate to obey such a man? A king was a sacred being; Baσiλeîs iepoì, says Pindar. Men saw in him, not a complete god, but at least "the most powerful man to call down the anger of the gods"; 2 the man without whose aid no prayer was heard, no sacrifice accepted.

This royalty, semi-religious, semi-political, was established in all cities, from their foundation, without effort on the part of the kings, without resistance on the part of the subjects. We do not see at the origin of the ancient nations those fluctuations and struggles which mark the painful establishment of modern societies.

CHAPTER V

RELIGION AND LAW

SECTION 1

RELIGIOUS ORIGIN OF ANCIENT LAW 1

AMONG the Greeks and Romans, as among the Hindus, law was at first a part of religion. The ancient codes of the cities were a collection of rites, liturgical directions, and prayers, joined with legislative regulations. The laws concerning property and those concerning succession were scattered about in the midst of rules for sacrifices, for burial, and for the worship of the dead.

What remains to us of the oldest laws of Rome, which were called the Royal Laws, relates as often to the worship as to the relations of civil life. One forbade a guilty woman to approach the altars; another forbade certain dishes to be served in the sacred repasts; a third prescribed what religious ceremony a victorious general ought to perform on re-entering the city. The code of the Twelve Tables, although more recent, still contains minute regulations concerning the religious rites of sepulture. The work of Solon was at the same time a code, a constitution, and a ritual; it regulated the order of sacrifices, and the price of victims, as well as the marriage rites and the worship of the dead.

Cicero in his Laws, traces a plan of legislation which is not entirely imaginary. In the substance as in the form of his code, he imitates the ancient legislators. Now, these are the first laws that he writes: "Let men approach the gods with purity; let the temples of the ancestors and the dwelling of the Lares be kept up; let the priests employ in the sacred repasts only the prescribed kinds of food; let every one offer to the Manes the worship that is due them." Assuredly the Roman philosopher troubled himself little about the old religion of the Lares and Manes; but he was tracing a code in

1

[By FUSTEL DE COULANGES, "The Ancient City;" translated by Willard Small; 11th ed., Lothrop, Lee, and Shepard Co., Boston; reprinted by permission.]

imitation of the ancient codes, and he believed himself bound to insert rules of worship.

At Rome it was a recognized truth that no one could be a good pontiff who did not know the law, and, conversely, that no one could know the law if he did not understand questions relating to religion. The pontiffs were for a long time the only jurisconsults. As there was hardly an act of life which had not some relation to religion, it followed that almost everything was submitted to the decision of these priests, and that they were the only competent judges in an infinite number of cases. All disputes regarding marriage, divorce, and the civil and religious rights of infants, I were carried to their tribunal. They were judges in cases of incest as well as of celibacy. As adoption affected religion, it could not take place without the consent of the pontiff. To make a will was to break the order that religion had established for the transmission of property and of the worship. The will, therefore, in the ĺ beginning, required to be authorized by the pontiff. As the limits of every man's land were established by religion, whenever two neighbors had a dispute about boundaries, they had to plead before the priests called fratres arvales. This explains why the same men were pontiffs and jurists - law and religion were but one.1

At Athens the archon and the king had very nearly the same judicial functions as the Roman pontiff.2

The origin of ancient laws appears clearly. No man invented them. Solon, Lycurgus, Minos, Numa, might have reduced the laws of their cities to writing, but they could not have made them. If we understand by legislator a man who creates a code by the power of his genius, and who imposes it upon other men, this legislator never existed among the ancients. Nor did ancient law originate with the votes of the people. The idea that a certain number of votes might make a law did not appear in the cities till very late, and only after two revolutions had transformed them. Up to that time laws had appeared to men as something ancient, immutable, and venerable. As old as the city itself, the founder had established them at the same time that he established the hearthmoresque viris et mania ponit. He instituted them at

1 Hence this old definition, which the jurisconsults preserved even to Justinian's time - Jurisprudentia est rerum divinarum atque humanarum notitia. Cf. Cicero, “De Legib.," II. 9; II. 19; "De Arusp. Resp.," 7. Dionysius, II. 73. Tacitus, 'Ann.," I. 10; "Hist.," I. 15. Dion Cassius, XLVIII. 44. Pliny, "N. H.," XVIII. 2. Aulus Gellius, V. 19; XV. 27.

2 Pollux, VIII. 90.

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the same time that he instituted the religion. Still it could not be said that he had prepared them himself. Who, then, was the true author of them? When we spoke above of the organization of the family, and of the Greek and Roman laws which regulated property, succession, wills, and adoption, we observed how exactly these laws corresponded to the beliefs of ancient generations. If we compare these laws with natural equity, we often find them opposed to it, and we can easily see that it was not in the notion of absolute right and in the sentiment of justice, that they were sought for. But place these laws by the side of the worship of the dead and of the sacred fire, compare them with the rules of this primitive religion, and they appear in perfect accord with all this.

Man did not need to study his conscience and say, "This is just;/ this is unjust." Ancient law was not produced in this way. But man believed that the sacred hearth, in virtue of the religious law, passed from father to son; from this it followed that the house was hereditary property. The man who had buried his father in his field believed that the spirit of the dead one took possession of this field forever, and required a perpetual worship of his posterity. As a result of this, the field, the domain of the dead, and place of sacrifice, became the inalienable property of a family. Religion said, "The son continues the worship - not the daughter;" and the law said, with the religion, "The son inherits - the daughter does not inherit; the nephew by the males inherits, but not the nephew on the female side." This was the manner in which the laws were made; they presented themselves without being sought. They were the direct and necessary consequence of the belief; they were religion itself applied to the relations of men among themselves.

The ancients said their laws came from the gods. The Cretans attributed their laws, not to Minos, but to Jupiter. The Lacedæmonians believed that their legislator was not Lycurgus, but Apollo. The Romans believed that Numa wrote under the dictation of one of the most powerful divinities of ancient Italy - the goddess Egeria. The Etruscans had received their laws from the god Tages. There is truth in all these traditions. The veritable legislator among the ancients was not a man, but the religious belief which men entertained.

The laws long remained sacred. Even at the time when it was admitted that the will of a man or the votes of a people might make a law, it was still necessary that religion should be consulted, and at least that its consent should be obtained. At Rome it was not